Can You Spell I-C-E-B-E-R-G? When you invoke privilege, nothing good can happen!

Former Deputy Attorney General Sally Yates, at the Justice Department on May 15, 2015. (Evelyn Hockstein/For The Washington Post)

The Washington Post today reported that the White House is attempting to block testimony before the House “Intelligence” Committee by former acting Attorney General, Sally Yates, claiming they are barred by the “presidential communications rule.”

“Executive privilege is an implied presidential power that is recognized by the courts, most famously in the U.S. v. Nixon (1974) Supreme Court case. There are generally four areas that an executive branch claim of privilege is based: 1) presidential communications privilege; 2) deliberative process privilege; 3) national security, foreign relations or military affairs, and 4) an ongoing law enforcement investigation.”

During the investigation of president Clinton, his attorneys made the case that presidential communications are privileged and that therefore certain White House aides could not be called to testify before the Office of Independent Counsel (OIC). The federal judge ruled that the OIC had made a compelling showing of need for testimony to properly conduct a criminal investigation. Clinton lost in his effort to prevent the testimony of his aides, but the judge did reaffirm the legitimacy of executive privilege. See, Library of Law and Liberty.

“The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case” (418 U.S. at 713-14). Chief JusticeBurger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch’s national security concerns.”

So, we know that the privilege is only “qualified” and not “absolute” in that a court can override the assertion of the privilege (as it did regarding President Clinton) if “the Prosecutor [makes] a “sufficient showing” that the “Presidential material” is “essential to the justice of the case.”

Now, let’s take a look at what the American Bar Association says in its canons of professional ethics which could be used as a guidepost for the assertion of “attorney-client privilege” and when it can be waived by the attorney.

Rule 1.6 Confidentiality of Information, is instructive. It states in relevant part:

“(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

“(1) to prevent reasonably certain death or substantial bodily harm;

“(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

“(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

“(4) to secure legal advice about the lawyer’s compliance with these Rules;

“(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

“(6) to comply with other law or a court order; or . . . “

So even under the ABA Rules, the attorney-client privilege is not absolute, as as can be seen from paragraph 6. A court under appropriate circumstances may order the attorney’s testimony.